State of Madhya Pradesh Vs. Ram Ratan
[1980] INSC 123 (9 May 1980)

DESAI, D.A.

DESAI, D.A.

CHANDRACHUD, Y.V. ((CJ) FAZALALI, SYED
MURTAZA

CITATION: 1980 AIR 1650 1980 SCR (3)1243

CITATOR INFO :

F 1982 SC1493 (6)

ACT:

Disciplinary proceedings and second show
cause notice to terminate the service of a government servant-No specification
in the show cause notice of the particular penalty proposed to be inflicted and
imposition of penalty other than such proposed penalty, whether bad and
illegal- Constitution of India, Article 311(2) and Rule 15(4)(i)(b) of the M.P.
Civil Services (Classification, Control and Appeal) Rules, 1966.

Practice and Procedure-Supreme Court is not
bound to set aside the order of the High Court directing reinstatement of the
employee when he has succeeded in two Courts below-Constitution of India, 1950,
Art.136.

HEADNOTE:

Respondent Ram Ratan was employed as a Forest
Guard in the Forest Department of Madhya Pradesh Government. He was served with
a charge-sheet dated March 6, 1969, in which he was accused of misconduct.
Respondent refuted the charges. A departmental enquiry was held by the
Divisional Forest Officer, Mr. Mathotra, in respect of the charges framed
against the respondent. Charge of misconduct was held proved whereupon the
punishing authority served respondent with a second show cause notice dated
February 12, 1970, as contemplated by Article 311(2) of the Constitution as it
stood prior to its amendment in 1976.

After the respondent replied to the notice
the disciplinary-cum-punishing authority imposed the penalty of compulsory
retirement on the respondent. The respondent questioned the validity and
correctness of the punishment in Civil Suit No. 227-A/73 filed by him in the
Court of the Civil Judge, Civil Court, Class II, Sabalgarh. The trial Court
decreed the suit and set aside the order imposing the major penalty of
compulsory retirement and granted a declaration that respondent continues in
service. On appeal by the State of Madhya Pradesh, the Second Additional District
Judge, Morena, set aside the decree of the trial Court and dismissed the suit
of the respondent. On appeal by the respondent to the High Court a learned
single judge of the Madhya Pradesh High Court a allowed the appeal of
respondent and set aside the decree made by the District Judge and restored the
one passed by the trial Court with the result that a declaration was granted
that the respondent would continue in service till the date of his
superannuation. Hence this appeal by special leave by the State of Madhya
Pradesh.

Allowing the appeal, the Court

HELD: 1. Article 311(2) as it stood at the
relevant time prior to its amendment in 1976 imposed a constitutional
obligation upon the punishing authority to serve a second show cause notice
where it was proposed after departmental inquiry to impose on the delinquent
Government servant any of the 1244 penalties referred to in Art. 311 so as to
give a reasonable opportunity of making representation on the penalty proposed.
Rule 15(4)(i)(b) of the 1966 Rules prescribes procedure to be followed by the
disciplinary authority before imposing punishment to the effect that the
concerned authority should give a notice setting out the penalty proposed to be
imposed on the concerned government servant, and calling upon him to submit
within 15 days of the receipt of notice or such further time not exceeding 15
days, as may be allowed, such representation as he may wish to make on the
proposed penalty on the basis of the evidence adduced during the inquiry held under
rule 14. The punishing authority has in the second show cause notice to specify
the punishment which it tentatively or provisionally decides upon to impose
looking to the gravity of the charge which is held proved. At that stage the
decision of the punishing authority is a tentative decision and in the very
nature of things it must be so because an opportunity has to be given to the
delinquent government servant to make a representation on the nature of
penalty. This would imply that if the delinquent officer in his representation
makes out a case for a lesser punishment the disciplinary authority would keep
an open mind and after applying its mind to the representation made by the
delinquent government servant, the authority may either confirm its earlier
tentative decision or it would be open to it to award a lesser penalty then the
one tentatively decided. [1247 C-H]

2. Principle of natural justice and fair play
implicit in Art. 311(2) and rule 15(4)(i)(b) would require that the
disciplinary authority has to take into consideration the representation made
by the delinquent government servant in response to the notice which is a
constitutional obligation, and if the delinquent officer is in a position to
pursuade by his representation, to so modulate the punishment as would accord
with the gravity of the misconduct and other mitigating or extenuating
circumstances all of which may enter into the verdict of deciding upon the
penalty, and consequently the disciplinary authority would be free to impose a
lesser penalty than the one proposed in the second notice. This is the
constitutional scheme. [1248 A-B] If the view, namely, that the disciplinary
authority must tentatively decide upon the penalty and specify the penalty in
the second show cause notice and after taking into consideration the
representation made by the delinquent government servant in response to the
notice it can only confirm the tentative decision but cannot award a lesser
punishment, the exercise of giving second show cause notice becomes self-defeating
and giving of the notice inviting the representation on the question of penalty
would be an exercise in futility. Such an approach would render a tentative
decision as final and the rest being an empty formality. Such could not be the
underlying object in enacting a constitutional mandate for the protection of
government servants. [1248 C-E] In service jurisprudence for different types of
misconduct various penalties are prescribed in service rules. 1966 Rules
prescribe as many as 9 penalties which can be awarded for good and sufficient
reasons. Compulsory retirement is one of the major penalties. Similarly,
removal from service which shall not be a disqualification for future
appointment in government service and dismissal from service which shall
ordinarily be a disqualification for future employment under the government are
the other two major penalties. The disciplinary authority keeping in view the
gravity of misconduct committed by the government servant will tentatively
determine the penalty to be imposed upon the delinquent government servant.
Degree of seriousness of misconduct will ordinarily determine the penalty
keeping in view the degree of harm that each penalty can inflict upon the
government servant. Before serving the second show cause notice the
disciplinary authority will determine tentatively the penalty keeping in view
the seriousness of misconduct. But this is a tentative decision. On receipt of
representation in response to notice, the disciplinary authority will apply its
mind to it, take into account any extenuating or mitigating circumstances
pleaded in the representation and finally determine what should be the penalty
that would be commensurate with the circumstances of the case. [1248 E-H, 1249
A] It a major penalty was tentatively decided upon and a lesser or minor
penalty cannot be awarded because this was not the specified penalty, the
government servant to whom a notice proposing major penalty is served would run
the risk of awarded major penalty because it would not be open to award a
lesser or a minor penalty than the one specified in the show cause notice. Such
a view runs counter to the principle of penology. In criminal and
quasi-criminal jurisprudence where the penalties are prescribed it is implicit
there under that a major penalty would comprehend within its fold the minor
penalty. If a major penalty is proposed looking to the circumstances of the
case, at that stage, after taking into consideration the representation bearing
on the subject and having an impact on the question of penalty a minor penalty
can always be awarded. In penal statute maximum sentence for each offence is
provided but the matter is within the discretion of the judicial officer
awarding sentence to award such sentence within the ceiling prescribed by law
as would be commensurate with the gravity of the offence and the surrounding
circumstances except where minimum sentence is prescribed and Court's
discretion is by legislation fettered.

[1299 A-D] Therefore, if any particular
penalty is specified as tentatively proposed in the second show cause notice
the disciplinary authority after taking into consideration the representation
made by the delinquent government servant can award that penalty or any lesser
penalty and in so doing Art. 311(2) will not be violated. In fact, this leaves
open a discretion to the punishing authority which accords with reason, fair
play and justice. [1251 B-C] Hukam Chand Malhotra v. Union of India,[1959]
Suppl. 1 SCR 892; followed.

3. Supreme Court while exercising its
extraordinary jurisdiction under Act. 136 of the Constitution, is not bound to
set aside the order of the High Court directing reinstatement of the employee,
when he has succeeded in the two courts below. Quantifying the backwages and
the costs would accord with the demands of social justice, reason and fairplay.
[1252 D-E] Punjab Beverages P. Ltd. v. Suresh Chand and Ors.

[1978] 3 SCR 370; followed.

CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 422 of 1980.

Appeal by Special Leave from the Judgment and
Order dated the 23-8-1979 of the Madhya Pradesh High Court (Jabalpur Bench) at
Gwalior in Second Appeal No. 42 of 1979.

1246 S. K. Gambhir for the Appellant.

Mr. N. S. Das Bahl for Respondent.

The Judgment of the Court was delivered by
DESAI, J.-Respondent Ram Ratan was employed as a Forest Guard in the Forest
Department of Madhya Pradesh Government.

He was served with a charge-sheet dated March
6, 1969, in which he was accused of misconduct. Respondent refuted the charges.
A departmental enquiry was held by the Divisional Forest Officer, Mr. Malhotra,
in respect of the charges framed against the respondent. Charge of misconduct
was held proved whereupon the punishing authority served respondent with a
second show cause notice dated February 12, 1970, as contemplated by Article
311(2) of the Constitution as it stood prior to its amendment by the
Constitution (Fortysecond Amendment) Act, 1976. The dispute in this appeal
centres around the construction of this notice No. E/1/2053 dated February 12,
1970, and its relevant portion may be extracted:

". . . the Enquiry Officer has concluded
in the report that he is guilty of the above-mentioned charges. Hence as a
result of the above said charges having been established, why you shall not be
imposed major penalty under the M. P. Civil Services Act ? . .

Why you will not be removed from the State
Service by imposing the abovesaid punishment ?" After the respondent
replied to the notice the disciplinary-cum-punishing authority imposed the
penalty of compulsory retirement on the respondent. The respondent questioned
the validity and correctness of the punishment in Civil Suit No. 227A/73 filed
by him in the Court of the Civil Judge, Civil Court, Class II, Sabalgarh. The
trial Court decreed the suit and set aside the order imposing the major penalty
of compulsory retirement and granted a declaration that respondent continues in
service. On appeal by the State of Madhya Pradesh, the Second Additional
District Judge, Morena, set aside the decree of the trial court and dismissed
the suit of the respondent. On appeal by the respondent to the High Court a
learned single judge of the Madhya Pradesh High Court allowed the appeal of respondent
and set aside the decree made by the District Judge and restored the one passed
by the trial court with the result that a declaration was granted that the
respondent would continue in service till the date of his superannuation. Hence
this appeal by special leave by the State of Madhya Pradesh.

1247 The High Court was of the opinion that
strict compliance with Art.311(2) of the Constitution along with rule
15(4)(i)(b) of the M. P. Civil Services (Classification, Control and Appeal)
Rules, 1966 ('1966 Rules' for short), must be insisted upon because it provides
a safeguard against arbitrary removal from service of Government servants.
Consistent with this approach and drawing sustenance from the decision of this
Court in Union of India & Ors. v. K. Rajappa Menon,(1) it was held that
unless the disciplinary or competent authority tentatively determines to
inflict a particular penalty and specifies the particular penalty to be
inflicted on the delinquent Government servant, the show-cause notice cannot be
sustained without such a particular penalty being specified and the final order
cannot be sustained unless the specified and no other penalty is imposed.

Article 311(2) as it stood at the relevant
time prior to its amendment in 1976 imposed a constitutional obligation upon
the punishing authority to serve a second show cause notice where it is
proposed after a departmental inquiry to impose on the delinquent Government
servant any of the penalties referred to in Art. 311 so as to give a reasonable
opportunity of making representation on the penalty proposed. Rule 15(4) (i)(b)
of the 1966 Rules prescribes procedure to be followed by the disciplinary
authority before imposing punishment to the effect that the concerned authority
should give a notice setting the penalty proposed to be imposed on the
concerned government servant calling upon him to submit within 15 days of the
receipt of notice or such further time not exceeding 15 days, as may be
allowed, such representation as he may wish to make on the proposed penalty on
the basis if the evidence adduced during the inquiry held under rule 14. It
would thus appear that the punishing authority has in the second show cause
notice to specify the punishment which it tentatively or provisionally decides
upon to impose looking to the gravity of the charge which is held proved. At
that stage the decision of the punishing authority is a tentative decision and
in the very nature of things it must be so because an opportunity has to be
given to the delinquent government servant to make a representation on the
nature of penalty.

This would imply that if the delinquent
officer in his representation makes out a case for a lesser punishment the
disciplinary authority would keep an open mind and after applying its mind to the
representation made by the delinquent government servant, the authority may
either confirm its earlier tentative decision or it would be open to it to
award a lesser penalty on them the one tentatively decided.

1248 Principle of natural justice and fair
play implicit in Art. 311(2) and rule 15(4) (i) (b) would require that the
disciplinary authority has to take into consideration the representation made
by the delinquent government servant in response to the notice which is a
constitutional obligation, and if the delinquent officer is in a position to
persuade by his representation, to so modulate the punishment as would accord
with the gravity of the misconduct and other mitigating or extenuating
circumstances all of which may enter into the verdict of deciding upon the
penalty, and consequently the disciplinary authority would be free to impose a
lesser penalty than the one proposed in the second notice. This is the
constitutional scheme.

If the view that the High Court has taken is
to be accepted that the disciplinary authority must tentatively decide upon the
penalty and specify the penalty in the second show cause notice and after
taking into consideration the representation made by the delinquent government
servant in response to the notice it can only either confirm the tentative
decision but cannot award a lesser punishment, the exercise of giving second
show cause notice becomes self- defeating and giving of the notice inviting the
representation on the question of penalty would be an exercise in futility.
Such an approach would render a tentative decision as final and the rest being
an empty formality. Such could not be the underlying object in enacting a
constitutional mandate for the protection of government servants.

In service jurisprudence for different types
of misconduct various penalties are prescribed in service rules. 1966 Rules
prescribe as many as 9 penalties which can be awarded for good and sufficient
reasons. In the list of penalties the first three are styled as 'minor
penalties' and the remaining six are styled as 'major penalties'.

Compulsory retirement is one of the major
penalties.

Similarly, removal from service which shall
not be a disqualification for future appointment in government service and
dismissal from service which shall ordinarily be a disqualification for future
employment under the government are the other two major penalties. The
disciplinary authority keeping in view the gravity of misconduct committed by
the government servant will tentatively determine the penalty to be imposed
upon the delinquent government servant. Degree of seriousness of misconduct
will ordinarily determine the penalty keeping in view the degree of harm that
each penalty can inflict upon the government servant. Before serving the second
show cause notice the disciplinary authority will determine tentatively the
penalty keeping in view the seriousness of misconduct.

But this is a tentative decision. On receipt
of representation in response to notice, the disciplinary authority will apply
its mind to it, take into account any extenuating or mitigating circumstances
pleaded in the representation and finally 1249 determine what should be penalty
that would be commensurate with the circumstances of the case. Now, if a major
penalty was tentatively decided upon and a lesser or minor penalty cannot be
awarded on the view taken by the High Court because this was not the specified
penalty, the government servant to whom a notice proposing major penalty is
served would run the risk of being awarded major penalty because it would not
be open to award a lesser or a minor penalty than the one specified in the show
cause notice. Such a view runs counter to the principle of penology. In
criminal and quasi- criminal jurisprudence where the penalties are prescribed
it is implicit thereunder that a major penalty would comprehend within its fold
the minor penalty. If a major penalty is proposed looking to the circumstances
of the case, at that stage, after taking into consideration the representation
bearing on the subjects and having an impact on the question of penalty a minor
penalty can always be awarded. In penal statute maximum sentence for each
offence is provided but the matter is within the discretion of the judicial
officer awarding sentence to award such sentence within the ceiling prescribed
by law as would be commensurate with the gravity of the offence and the
surrounding circumstances except where minimum sentence is prescribed and
Court's discretion is by legislation fettered. This is so obvious that no
authority is needed for it but if one is needed, a constitution Bench of this
Court in Hukam Chand Malhotra v. Union of India(1) dealt with this very aspect.
Relevant portion of the second show cause notice which was before this Court
may be extracted:

'On a careful consideration of the report,
and in particular of the conclusions reached by the Enquiry Officer in respect
of the charges framed against you the President is provisionally of opinion
that a major penalty viz., dismissal, removal or reduction should be enforced
on you....' Ultimately, after taking into consideration the representation made
by the concerned government servant penalty of removal from service was imposed
upon him. It was contended before this Court that in view of the decision of
the Privy Council in High Commissioner for India and High Commissioner for
Pakistan v. I. M. Lall, and Khem Chand v. Union of India(3) it is well settled
that the punishing authority must either specify the 'actual punishment' or
'particular punishment' in the second show cause notice otherwise the notice
would be bad. Repelling this contention this Court observed as under:

1250 Let us examine a little more carefully
what consequences will follow if Art. 311(2) requires in every case that the
"exact" or "actual" punishment to be inflicted on the
Government servant concerned must be mentioned in the show cause notice issued
at the second stage. It is obvious, and Art. 311(2) expressly says so, that the
purpose of the issue of a show cause notice at the second stage is to give the
Government servant concerned a reasonable opportunity of showing cause why the
proposed punishment should not be inflicted on him, for example, if the
proposed punishment is dismissal, it is open to the Government servant concerned
to say in his representation that even though the charges have been proved
against him, he does not merit the extreme penalty of dismissal, but merits a
lesser punishment, such as removal or reduction in rank. If it is obligatory on
the punishing authority to state in the show cause notice at the second stage
the "exact" or "particular" punishment which is to be
inflicted, than a third notice will be necessary if the State Government
accepts the representation of the Government servant concerned.

This will be against the very purpose for
which the second show cause notice was issued".

"... If in the present case the show
cause notice had merely stated the punishment of dismissal without mentioning
the other two punishments it would still be open to the punishing authority to
impose any of the two lesser punishments of removal or reduction in rank and no
grievance could have been made either about the show cause notice or the actual
punishment imposed".

The High Court in support of its decision has
relied upon K. Rajappa Menon's case (Supra). The High Court appears to be of
the view that the decision in Rajappa Menon's case is an authority or the
proposition that if the punishing authority fails to specify any particular
punishment to be imposed on the Government servant the show cause notice cannot
be sustained without such a particular punishment being specified. Such was not
the case before this Court in Rajappa Menon's case. The contention canvassed
before this Court was that if disciplinary authority specifies the penalty
tentatively decided upon by it. it would indicate that the authority has
finally made up its mind and, therefore, the notice would be bad. This
contention was in terms negatived relying upon Khem Chand's case (Supra) and it
was observed that the procedure which is to be followed under Art. 311(2) of
the Constitution of affording a reasonable opportunity includes giving of two
notices, one at the enquiry stage and 1251 the other when the competent
authority as a result of the enquiry tentatively determines to inflict a
particular punishment. It is quite obvious that unless the disciplinary or the
competent authority arrives at some tentative decision it will not be in a
position to determine what particular punishment to inflict and a second show
cause notice cannot be issued without such a tentative determination. This is
of no assistance in the case under discussion.

It is thus incontrovertible that if any
particular penalty is specified as tentatively proposed in the second show cause
notice the disciplinary authority after taking into consideration the
representation made by the delinquent government servant can award that penalty
or any lesser penalty and in so doing Art. 311(2) will not be violated. In
fact, this leaves open a discretion to the punishing authority which accords
with reason, fair play and justice.

The fact situation in this appeal is that in
the notice dated February 12, 1970, the disciplinary authority stated that it
was tentatively proposed to impose major penalty, viz., removal from service.
Original notice is in Hindi language. Its translation in English language is
placed on record. It clearly transpires from the notice that the punishing
authority tentatively proposed to impose a major penalty of removal from
service. Ultimately, after taking into consideration the representation of the
respondent the disciplinary authority imposed penalty of compulsory retirement.
In relation to penalty of removal from service the penalty of compulsory
retirement inflicts less harm and, therefore, it is a lesser penalty compared
to removal from service. Compulsory retirement results in loss of service for
certain years depending upon the date of compulsory retirement and the normal
age of superannuation, but the terminal benefits are assured. In removal from
service there is a further disqualification which may have some repercussion on
terminal benefits. It was not disputed before us that in comparison to removal
from service compulsory retirement is a lesser penalty. Therefore, when in the
second show notice major penalty of removal from service was tentatively
proposed, it did comprehend within its fold every other minor penalty which can
be imposed on the delinquent government servant. That having been done, no
exception can be taken to it.

The High Court was accordingly in error in
holding that the second show cause notice was invalid and on this ground
allowing the second appeal of the respondent, and decreeing his suit.
Accordingly this appeal will have to be allowed.

1252 The next question is, what order we
should make in this appeal. If the appeal is allowed, naturally the suit of the
respondent will stand dismissed.' The respondent was a Forest Guard, a petty
servant, serving in the Forest Department of the State. The charge against him
was that he removed some forest wood worth about Rs. 310.12P. He has been in
this litigation for the last 10 years. He won in the trial court and in the
High Court. This appeal was preferred by the State for a decision on the
question of law which may affect other cases. Allowing the State appeal would
clarify the legal position and that would serve the purpose of the State in
preferring the appeal.

A welfare State would hardly be interested in
pursuing its employees serving in the lower echelons of service as would
inflict, unbearable burden on him. Further, if the order by the High Court is
not interfered with, the respondent would have to be reinstated in service but
by the passage of time he would have by now retired on superannuation also and
accordingly he would be entitled to his salary for the period commencing from
date of his compulsory retirement to the date of his normal retirement on
superannuation. Since we are exercising our extraordinary jurisdiction under
Art. 136 of the Constitution, we are not bound to set aside the order of the
High Court directing reinstatement of the respondent but as he would now only
be entitled to his back wages, we quantify the same at Rs. 10,000/- and direct
that the State shall pay the same with costs quantified at Rs. 1,000/- to the
respondent. Such an approach accords with the demands of social justice, reason
and fair play. [See Punjab Beverages Pvt. Ltd. v. Suresh Chand & Ors.(1)]
The State shall pay the amount herein directed to be paid within two months
from today and the respondent shall be entitled to his terminal benefits from
the date of his retirement on superannuation.